Antiquated mining law hamstrings cleanups

Dating 143 years, few mandates exist for reclamation

Miners at an unidentified mine stop their work to pose for a picture around 1900. Mining laws enacted in the 1870s dominate mining activity to this day. "The 1872 mining law is the freest ride of all free rides on the books," expert Roger Flynn said.

Courtesy of San Juan County Historical Society

DENVER - Outdated hard-rock mining laws enacted in the 1870s tie the hands of the federal government to curb pollution that contaminates water supplies, as was the case with the Gold King Mine spill.

Perhaps the most significant deficiency comes in the form of a "free and open" provision of the Mining Law of 1872, otherwise known as a "right to mine." Limited reforms have been made to the law over the last 143 years, leaving in place a provision that prohibits the federal government from blocking a mine from opening or even collecting royalties from operations.

The law also left little to government regulation, falling in line with the theme of Manifest Destiny from Western expansion in the 19th century. When the nation's mining laws were crafted, the goal was settlement, not environmental regulation.

"The 1872 mining law is the freest ride of all free rides on the books," said Roger Flynn, an adjunct professor at the University of Colorado School of Law and the director and managing attorney of Western Mining Action Project, a nonprofit that handles hard-rock mining cases.

When the Animas River turned orange Aug. 5 from an error by an Environmental Protection Agency-contracted team - an ill-fated reclamation effort at the Gold King Mine that instead sent an estimated 3 million gallons of sludge into the river - the public immediately began to point fingers.

Just who holds the liability remains unclear. Flynn said some responsibility rests with the mine's owner, Todd Hennis. Some liability also may fall on the EPA, who became a sort of operator when it began working there.

But it's more complicated than that. Gold King, near Silverton, became inactive in the 1920s. But the neighboring mine of Sunnyside also is entangled in the web. The mine became inactive in the 1990s, and ownership at the time reached an agreement with Colorado to install bulkheads in the mine. Since that mine was dammed, wastewater in nearby mines has increased.

Sunnyside Gold Corp., a subsidiary of Kinross Gold, entered into a consent decree, allowing for the mine to continue to leak heavy metals, while the company agreed to costly reclamation projects.

Judging by the disaster earlier this month, overall efforts have not been enough, which begs the question: How did it get to this point?

The simplest answer is money. The Mining Law of 1872 allows companies to extract billions of dollars worth of precious metals - such as gold and uranium - pay no royalties and avoid liability for environmental damage in several situations. Without the royalties, there is limited government funding for reclamation, and few burdens are placed on the companies.

Over the years, beginning in the 1970s, the federal government began to take action on environmental issues, enacting laws around clean water and endangered species. But companies have found loopholes. One example is hiring experts to vouch for water quality.

Because the federal government is charged with the "free and open" provision under mining laws, officials often default to this clause. In other words, if the experts say the water is safe, and the government is obligated to let a company operate, then there's little recourse for regulators.

An option for reclamation is declaring an area blighted with a Superfund listing, which opens the doors to funding. But as was the case with Gold King, communities sometimes resist it, as they fear it carries a stigma. Flynn said the result is a government rendered impotent.

"The 1872 mining law makes mining the highest and best use of the land," said Flynn. "Whatever minerals you find on that are free. ... Agencies will say we can't say no to the mine no matter how destructive, unless you can prove there will be a Clean Water Act violation on Day 1."

The irony, of course, is that those violations don't occur until well after operations have begun.

"The feds don't have the ability on public land to say no - no matter how bad the idea is, how bad the place is - because of the 1872 mining law," Flynn said. "So, they permit these things all over ... and they allow potential pollution."

Republicans tend to lean toward empowering the private sector to act on reclamation through good Samaritan legislation, which would ease liabilities.

U.S. Rep. Scott Tipton, R-Cortez, has been active on the subject. He co-sponsored legislation in 2013 that would provide liability protections for cleanups of inactive mines under the Clean Water Act.

"Congressman Tipton and his staff continue working through possible options with community leaders and stakeholders, as well as with Colorado's U.S. senators, with the focus on identifying the best possible solution to address the issue and pass through Congress," said Tipton spokesman Josh Green.

State Rep. Don Coram, R-Montrose, is not so sure that the answer is additional regulations.

"I'm not comfortable with the EPA being in charge," Coram said. "I would much rather that federal funding goes into letting the state run those projects."

Related Stories

Antiquated mining law hamstrings cleanups

Miners at an unidentified mine stop their work to pose for a picture around 1900. Mining laws enacted in the 1870s dominate mining activity to this day. "The 1872 mining law is the freest ride of all free rides on the books," expert Roger Flynn said.

Unsupported Browser Alert

The browser you are currently using has been discontinued by its developers. For the best expereience on our site, we recommend downloading either of the following two web browsers; they are both fast, user-friendly, secure, and most importantly up-to-date.